In Carrion v. City of New York, the Appellate Division, Second Department affirmed a summary judgment for plaintiff on his claim under Labor Law § 240(1).
Plaintiff “allegedly was standing on an extension ladder that had been placed atop a scaffold when the scaffold unexpectedly tipped away from a wall, causing him to fall to the ground and sustain injuries.”
Defendants opposed plaintiff’s motion for summary judgment, arguing that there were “significant issues” as to plaintiff’s credibility.
In order to prevail on a Labor Law § 240 (1) cause of action, a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries. A fall from a scaffold or ladder ” does not establish, in and of itself, that proper protection was not provided, and the issue of whether a particular safety device provided proper protection is generally a question of fact for the jury. Although a motion for summary judgment should not be granted where the facts are in dispute, the dispute must relate to material issues. (Emphasis in original.)
Plaintiff satisfied his initial burden:
Here, the plaintiffs made a prima facie showing of entitlement to judgment as a matter of law on the issue of liability on so much of the complaint as alleged that the construction defendants violated Labor Law § 240(1) through the submission of the injured plaintiff’s affidavit and deposition testimony, which demonstrated that the scaffold failed to afford him proper protection for the work being performed, and that this failure was a proximate cause of his injuries.
In response, defendants failed to raise a triable issue of fact:
[Defendants] did not offer any evidence, other than mere speculation, to refute the plaintiff[s’] showing or to raise a bona fide issue as to how the accident occurred. Contrary to the construction defendants’ contention, the injured plaintiff’s testimony at his examination pursuant to General Municipal Law § 50-h and his deposition testimony were consistent on the material facts as to how the accident occurred. Further, the testimony of the injured plaintiff’s coworkers, who did not witness the accident, did not raise a triable issue of fact as to any material issue.
Therefore, the trial court properly granted that portion of the plaintiff’s motion for summary judgment on the issue of liability under Labor Law § 240(1) against the construction defendants.